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Wednesday, 24 November 2010
Page: 2140

Senator FEENEY (Parliamentary Secretary for Defence) (6:21 PM) —I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

Human Rights (Parliamentary Scrutiny) Bill 2010

The Human Rights (Parliamentary Scrutiny) Bill 2010, together with the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010, implements legislative elements of Australia’s Human Rights Framework, which was released on 21 April 2010.

The changes in the Framework are aimed at enhancing understanding of and respect for human rights in Australia and ensuring appropriate recognition of human rights issues in legislative and policy development.

This Bill contains two important measures that are designed to improve parliamentary scrutiny of new laws for consistency with Australia’s human rights obligations and to encourage early and ongoing consideration of human rights issues in policy and legislative development.

The Government believes that Australia can, and should, live up to its obligations under these treaties. Not simply because this is the right thing to do but because the principles contained in those documents provide a protection against unwarranted, unjustified or arbitrary interference of the fundamental rights enjoyed by all individuals irrespective of their colour, background or social status.

Essentially the implementation of these two measures - statements of compatibility on human rights and a new Joint Parliamentary Committee on Human Rights establish a dialogue between the Executive, the Parliament and ultimately the citizens they represent.

First, the requirement of a statement of compatibility on human rights will establish between the Executive and the Parliament whereby members and Senators will be able to consider the impact of proposed legislations on the citizens they represent.

And in turn, the new Parliamentary Committee will establish a dialogue between the Parliament and its citizens whereby the members of the Committee can canvass the views of the public, including affected groups, as to how they will be affected by proposed legislation.

In that sense, these measures incrementally advance the concept of participatory democracy by providing additional means for citizens to have input into the legislative process.

In terms of how these measures will operate in practice, it is appropriate to provide a brief overview of these measures.

Joint Parliamentary Committee on Human Rights

The first of these measures is to establish a new Joint Parliamentary Committee on Human Rights.

The reference point for the Committee will be the rights and freedoms recognised or declared by the seven core United Nations human rights treaties as they apply to Australia. The treaties are:

  • International Convention on the Elimination of All Forms of Racial Discrimination
  • International Covenant on Civil and Political Rights
  • International Covenant on Economic, Social and Cultural Rights
  • Convention on the Elimination of All Forms of Discrimination against Women
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  • Convention on the Rights of the Child, and
  • Convention on the Rights of Persons with Disabilities.

The Committee will examine and report to Parliament on compatibility of Bills and legislative instruments with Australia’s human rights obligations under these seven human rights treaties.

It will also be able to examine existing legislation and conduct broad inquiries into matters relating to human rights referred to it by the Attorney-General.

Statements of Compatibility

The Bill also introduces a requirement for statements assessing compatibility with human rights to accompany all new Bills and disallowable legislative instruments.

When Parliament comes to consider bills and legislative instruments, statements of compatibility will alert Parliament to the relevant human rights considerations and will inform Parliamentary debate.

Where appropriate, statements may justify restrictions or limitations on rights where such restrictions are in the interests of other individuals or society more generally as permitted by the human rights treaties.

A statement of compatibility and a report of the Joint Committee on Human Rights, will not be binding on a court or tribunal.

However, as with other explanatory materials, courts may refer to a statement of compatibility or a report of the Committee to assist in ascertaining the meaning of provisions in a statute where the meaning is unclear or ambiguous.


The measures in this Bill will deliver improved policies and laws in the future by encouraging early and ongoing consideration of human rights issues in the policy and law-making process and informing Parliamentary debate on human rights issues.

This Bill contributes to enhancing community confidence that our laws reflect our human rights obligations.

Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010

The Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010, together with the Human Rights (Parliamentary Scrutiny) Bill 2010, implements legislative elements of Australia’s Human Rights Framework, which was released on 21 April 2010.

The Commonwealth has a comprehensive and extensive framework for independent review of administrative decisions.

The Administrative Review Council is an independent body established to review and inquire into the Commonwealth administrative law system and recommend improvements that might be made to the system.

The proposed amendments will ensure an appropriate human rights perspective is integrated in the views of the Administrative Review Council by including the President of the Australian Human Rights Commission as an ex-officio member of the Council.

In addition, the proposed amendments will integrate statements of compatibility into existing procedures for tabling legislative instruments.

This package of reforms, along with the other changes in the Framework, will inform Parliamentary consideration of human rights and enhance the understanding of and respect for human rights in Australia.

National Broadcasting Legislation Amendment Bill 2010

The purpose of the National Broadcasting Legislation Amendment Bill 2010 is to amend the Australian Broadcasting Corporation Act 1983 (ABC Act) and Special Broadcasting Service Act 1991 (SBS Act). The amendments would also reinstate the ABC staff-elected Director.

This Bill fulfils two important and longstanding commitments by the Labor Party. We undertook in our National Platform in 2007 to end political interference in the ABC by introducing a new transparent and democratic board appointment process in which non-executive Directors are appointed on the basis of merit. We promised to deal with SBS Board appointments in the same way, and to restore the staff-elected director on the ABC Board.

The intention of these amendments is to achieve better long term outcomes for both Boards and consequently improve governance in our national broadcasters.

Merit-based appointment of non-executive Directors

ABC and SBS Board appointments have previously been made by the Governor-General on the recommendation of the Government of the day, in accordance with provisions in the ABC and SBS Acts. While these Acts specify generic criteria against which candidates are to be assessed prior to appointment, they establish no formal process for appointments and do not require any degree of transparency in relation to how candidates are selected.

In practice this lack of due process has resulted in long-running concerns that ABC and, to a lesser extent, SBS Board appointments have been politically motivated. Commentators have also raised concerns that perceived political appointments have diminished the level of expertise which particular Board members can bring to bear on the range of complex technological and financial issues facing the national broadcasters.

In order to address the perceived lack of transparency and to ensure the best candidates are available, the Government has developed a new appointment process whereby an independent panel will conduct a merit-based selection process for non-executive Directors to the ABC and SBS Boards and provide advice to the Government on suitable appointments.

Guidelines were released in October 2008 outlining the new process, with appointments being made in March 2009 and June 2010. The merit-based selection process takes the politics out of the appointment process and puts the focus where it should be, on getting the best candidates for the Boards.

The amendments will formalise this new merit-based appointment process in the legislation of both broadcasters and ensure it is used consistently to fill all future non-executive Director vacancies. The legislation is also drafted to ensure that the Nomination Panel conducts its selection process at arms-length from the Government of the day.

Features of the new process include:

  • The assessment of applicants’ claims will be undertaken by an independent Nomination Panel established at arm’s length from the Government.
  • Vacancies will be widely advertised, at a minimum in the national press and/or in major State and Territory newspapers, and the website of the Department of Broadband, Communications and the Digital Economy.
  • The assessment of candidates will be made against a core set of published selection criteria which may be supplemented by additional criteria where appropriate for specific positions, for example to address particular skill gaps.
  • The Nomination Panel will provide a report to the Minister with a short-list of at least three candidates for each vacant position.
  • The Minister will select a candidate from the short-list and will write to the Governor-General recommending the appointment as required under the ABC and SBS Acts.
  • In accordance with the Government’s election commitment, the appointment of current or former politicians or senior political staff will be prohibited.
  • In addition, where the vacancy is that of the Chair of the ABC Board, the Prime Minister would select the preferred candidate in consultation with the Minister. The Prime Minister would then confer with Cabinet and once Cabinet approval was granted, the Prime Minister would consult with the Leader of the Opposition before making a recommendation to the Governor-General.
  • The legislation provides for the Nomination Panel to be appointed by the Secretary of the Department of the Prime Minister and Cabinet and sets out processes for its operation. The Nomination Panel is independent and the legislation states it is not subject to direction by the Government.

While the Minister (or in the case of the Chair of the ABC Board, the Prime Minister) may select a candidate who has not been recommended by the Nomination Panel, they are required to table a statement of reasons in both Houses of Parliament within 15 sitting days of the announcement of the appointment. This is consistent with the principle of Ministerial Responsibility whereby the ultimate responsibility for government appointments is with the relevant Minister.

The new legislation will provide increased certainty for the Boards regarding appointments and tenure. It will strengthen the process and entrench clear rules of appointment and security of tenure for the Nomination Panel. It will set out how they function and underscore the independence of the Panel from Government.

Staff-elected Director on ABC Board

Prior to 2006, the ABC Act provided for the inclusion of a staff-elected Director on the Board.

The staff-elected Director plays an important role in enhancing the ABC’s independence by providing the Board with a unique and important insight into ABC operations. The staff-elected Director will often be the only individual with the expertise to question the advice coming to the Board from the ABC’s Executive.

The staff-elected Director has the same duties, rights and responsibilities as all other non-executive Directors. Like any other ABC director, the staff-elected Director’s primary duty is to act in the best interests of the Corporation. The only difference between the staff-elected Director and other ABC directors is their means of appointment.

There is nothing in the present Act or amendment that says the duties of the staff-elected Director are different to those of the other non-executive directors on the Board.

It is the responsibility of the Board to ensure that all Directors are aware of their primary duty to act in the interest of the Corporation as a whole. This point was made by the Australian National Audit Office in 1999 when it noted in its discussion paper about corporate governance that a written code of conduct, approved by the Board, setting out ethical and behavioural expectations for both directors and employees was a “better practice” governance principle for the Board of a Commonwealth authority or company. 1


The measures in this Bill deliver on the Government’s election commitments to introduce a new merit-based appointment process for the ABC and SBS Boards and to restore the position of staff-elected Director on the ABC Board. They will increase the transparency and democratic accountability of the ABC and SBS Boards and will strengthen our national broadcasters and assist in ensuring they continue to provide Australians with high quality broadcasting services, free from political interference.

Ordered that further consideration of the second reading of these bills be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.

Ordered that the National Broadcasting Legislation Amendment Bill 2010 be listed on the Notice Paper as a separate order of the day.

[1] Principles and better practices: corporate governance in Commonwealth authorities and companies: discussion paper/Australian National Audit Office. Canberra, 1999